https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11012

Sakala v Republic (Criminal Appeal E074 of 2025) [2026] KEHC 11012 (KLR) (20 July 2026) (Judgment) Neutral citation: [2026] KEHC 11012 (KLR) Republic of Kenya In the High Court at Kakamega Criminal Appeal E074 of 2025 S Mbungi, J July 20, 2026 Between Moses Sakala Appellant and Republic Respondent (Being an appeal from the Judgement delivered by Hon. A.A.Odawo, PM on 10th June, 2025 in Kakamega Chief Magistrate Court Sexual Offence Case Number E176 of 2021) Judgment 1.For the determination of this Honourable Court is an appeal that is lodged by the Appellant herein vide a Petition of Appeal dated 5th August, 2025. The Appeal arose from the Judgement of the lower court wherein the Appellant, who is the Accused Person in Kakamega Chief Magistrate Court Sexual Offence Case Number e176 of 2021 was found guilty as charged and was convicted of the Offence of Sexual Assault Contrary to Section 5 (1) of the Sexual offences Act No. 3 of 2006. 2.Being aggrieved and dissatisfied by the conviction, the Appellant filed the instant appeal on the following five (5) grounds; -1.That, the Trial Court Magistrate erred in law and facts by failing to inform the Appellant of his constitutional rights to have a legal representation contrary to article 50(2) (g) of the COK 2010.2.That, the Trial Court erroneously convicted the Appellant out of contradictory and inconsistent evidence.3.That, the Trial Court erroneously based the conviction on shoddy investigated matter.4.That, the Learned Trial Magistrate convicted the Appellant without noting that the elements of the offence were not conclusively proved beyond reasonable doubt.5.That, more grounds to be adduced during the hearing. 3.In a nutshell, it is discernible that the Appellant’s appeal herein is substantively based on an argument that the evidence that was adduced in this case was not sufficient to lead to the conviction bearing in mind the legal threshold in criminal matters of beyond reasonable doubt. The Appellate Jurisdiction Of This Court 4.This court is alive to its duty upon presentation of a first appeal; to re-evaluate and re-assess the evidence on record and draw its own independent conclusions as may be deserving of the case and on its merits. The mandate of a first appellate court is, for instance, echoed by the Court of Appeal in Joshua v Republic [2026] KECA 1163 (KLR) which ably observed thus; -“This Court is fundamentally empowered and duty-bound to re-evaluate, re-assess, and re-examine the entirety of the evidence on record independently to arrive at its own conclusions. We must remain alert that we did not listen and see the witnesses testify like the trial court. The court has the authority to confirm, reverse, or vary the conviction and sentence. It can acquit the appellant, substitute the conviction for a lesser offense or order a retrial.” 5.In Joshua v Republic cited hereinabove, the Court of Appeal re-affirms the well-established position in the famous East African Court of Appeal case In Okeno v. Republic [1972] EA 32 where it was inter alia held;“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to have the appellate court's own decision on the evidence. The appellate court must itself weigh conflicting evidence and draw its own inferences. It is not bound to follow the trial judge's finding of fact if it appears that he has failed to take account of particular circumstances or probabilities.... But it must bear constantly in mind that the trial judge had the advantage of seeing the witnesses face to face and his opinion of their credibility is entitled to great weight.” The Appellates’ Submissions 6.The Appellant herein made very brief albeit abstract three (3) pages written submissions on this appeal. 7.On the first ground of the Petition for Appeal pegged on the Article 50 (2)(g) of the Constitution of Kenya,2010. 8.The Appellant alleged that he was not informed by the trial court magistrate of his constitutional rights to have a legal representative under the said provisions in our Constitution. 9.I have considered the Appellant’s submissions. What comes out clear is that the Appellant urges the court to find that the evidence that was adduced in this case was not sufficient to sustain a conviction under the Offence of Sexual Assault Contrary to Section 5 (1) of the Sexual offences Act No. 3 of 2006. 10.Particularly, the Appellant urged that there was no clear evidence of penile penetration of the genital organ of the minor (also referred to as L.K herein). Secondly, the Appellant contends that evidence of the eye witness who testified at the hearing was not credible and was not corroborated by another eye-witness. The Appellant also argues that the medical evidence that was adduced was inconclusive. Finally, the Appellant submitted that the trial court did not consider his defence. The Respondent’s Submissions 11.The Respondent submitted the Appellant was represented by Counsel in the trial, therefore the first ground of appeal is indeed baseless. 12.Further, the Respondent urged that it proved its case by calling witnesses who adduced evidence pointing to the fact that there was unlawful penetration of the minor private organ. The Appellant was well known in the neighbourhood. He was positively identified as the perpetrator. Thus, the Respondent urges this Court to dismiss the appeal for it lacks merit. Analysis And Determination 13.As already stated, this Court is aware of its mandate as a first appellate court. I shall therefore proceed to interrogate the allegations of facts, the law and the evidence that was adduced in this case in no particular order before reaching a conclusion whether the Appellant was fairly convicted of the Offence of Sexual Assault Contrary to Section 5 (1) of the Sexual offences Act No. 3 of 2006. 14.To begin with, Section 5 of the Sexual Offences Act provides as follows;-5.Sexual assault(1)Any person who unlawfully—(a)penetrates the genital organs of another person with—(i)any part of the body of another or that person; or(ii)an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes;(b)manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person's body;is guilty of an offence termed sexual assault.(2)A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life. Issues For Determination 15.In the light of these provisions of the law and having duly considered both parties’ written submissions, the Court frames the following issues for the determination in this Appeal;-1.Whether there was conclusive evidence of unlawful penetration of the genitals of the minor?2.Whether it was established that Accused/ the Appellant herein caused the penetration?3.Whether the Prosecution proved the offence of Sexual Assault Contrary to Section 5 (1) of the Sexual offences Act as against the Appellant beyond reasonable doubt? On whether there was conclusive evidence of unlawful penetration of the genitals of the minor? 16.A reading of Section 5 (1) (a) and (b) of the Sexual offences Act reveals that one is deemed as guilty of the offence of sexual assault if it is proven that the person unlawfully penetrated the genital organs of another using any part of a body or an object. 17.In this case, it is on record that minor who was allegedly sexually assaulted was subjected to medical examination at Shinyalu Model Health Centre to establish whether there was penetration of her genital organs. A report dated 13th December,2021 was prepared. The original copy of the examination report (PRC Form) was produced at the hearing as PExh-3 by PW6, a registered Clinical Officer. 18.PW 6 testified that from the examination that was done at the medical facility, there was clear signs of penetration of the genital organs of L.K (the Minor). The Vaginal wall had bruises, blood oozing from labia minora, hymen was broken, and there were lacerations on libia. 19.Notably, the trial magistrate considered the evidence adduced by PW6 in the Judgement and correctly entered a finding that injuries noted from the medical examination were conclusive evidence of penetration regardless of whether it was caused by fingers or penile shaft. It is contended in this case that the Appellant unlawfully penetrated the minor’s genital organs suing his fingers which is a body organ within the meaning of the SOA. Similarly, I find that penetration by fingers falls within the provision of Section 5 (1) of the Sexual offences Act. Whether it was established that accused/ the Appellant herein caused the penetration? 20.As ably observed by Trial Court, it comes out clear and is indeed undisputed that from the evidence on record, the minor in questions was within the premises of the Appellant when the offence complained of occurred. 21.The minor had been sent to mill maize flour at the Appellant’s posho mill. PW-5, an eye witness gave sworn evidence that on the material day she happened to have been in the same posho mill seeking the same milling services as the minor victim. She witnessed that the Appellant declining to be paid by the minor but instead asked her to wait. 22.Alarmed by this unusual conduct on the part of the Appellant, PW5 decided to hang around and see what happens. Later she found the minor was in a room with the Appellant and on a bed. PW-5 testified that on peeping through a window she saw the Appellant insert his fingers into the minor’s vagina. The house was locked but the lights were on 23.The evidence of PW2, PW3, PW4, and PW7 corroborates the evidence adduced by PW1 and PW5 on the events of the material day pointing to the Appellant herein was the perpetrator. 24.The Appellant’s defence that the minor was at the door when he was attacked by a crowd is a mere denial. 25.This court finds that the prosecution proved that the Appellant was the perpetrator of the offence. Whether the Prosecution proved the offence of Sexual Assault Contrary to Section 5 (1) of the Sexual offences Act as against the Appellant beyond reasonable doubt? 26.On the legal threshold of proof beyond reasonable doubt in criminal case, the Court of Appeal in Stephen Nguli Mulili V Republic [2014] KECA 408 (KLR) ably observed that; -“The standard of proof required is “proof beyond reasonable doubt”. In reference to this Lord Denning in Miller V Ministry Of Pensions, [1947] 2 ALL ER 372 stated:“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” 27.In the instant case, I concur with Learned Magistrate for he properly found that the elements of the of offence of sexual assault under the SOA were proved. The prosecution needed to prove that the penetration was unlawful penetration and the accused is the perpetrator. 28.The Trial Court having established that these two elements were proven, the prosecution discharged its duty. Determination 29.In the upshot, this Court finds that;-I. The trial court reached a fair determination of this case based on the evidence that was adduced before the court and the conviction thereof is sound and safe.II. The Appeal is dismissed for lack of merit. 30.The sentence imposed by the Trial Court stands for it is founded in the express provision of the Sexual Offences Act which prescribes a minimum imprisonment for a term of ten years therefore it is sustained. 31.Right of Appeal 14 days explained. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 20TH DAY OF JULY, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Zildah/VelmaAppellant present.Emily for the ODPP present online.Mokaya, Lena Moraa